Baroness Kennedy of The Shaws: I, too, support the views expressed. I want to remind the Committee that when we discussed juries the noble Lord, Lord Mishcon, told a wonderful story about how he as a young lawyer was sitting in Bow Street magistrates' court when someone was brought in and tried. The basis on which the magistrate reached his conclusion that the man was guilty was that he was clearly a tramp. The accusation was that he had sidled up to someone and taken his wallet. What came to light afterwards was that the man had gone back to his house and found his wallet in the pocket of a suit, and that it had not been stolen at all. However, the magistrate expressed the view at the time that the tramp was exactly the kind of person that he suspected would be up to such an activity.

The problem is that even judges and magistrates, never mind juries, can be very easily misled into thinking that someone is the kind of person who might commit a particular sort of offence. I had the opportunity of discussing that with some judges from South Africa recently. They reminded me that, even under apartheid when judges alone and not juries tried cases, they made a very clear rule and stuck to it that people's previous convictions would not be put before the judges. They knew how strongly that could act against the interests of those on trial.

Like others, I feel very strongly that the clause may be one of the most offensive parts of the Bill, and I ask that the Government think again.

The Earl of Erroll: It is with great temerity that I, a layman, speak in the debate, but I do so because I did jury service a year ago. We have to be careful about

15 Sept 2003 : Column 729

thinking of juries as a bunch of people who can be easily influenced and have the wool pulled over their eyes.

I have great respect for juries as a result of my service, because everyone took their duties very seriously. Yes, in the jury room there was the usual split of two for hanging, two for acquitting, and eight undecided who then went one way or the other and the matter was dealt with. However, we wanted more information, because huge arguments went on in court without us present about what we were and were not to be allowed to hear. It was very frustrating, because it was as if we were idiots, and we were not.

The perfectly sensible people on juries are quite capable of filtering information and are probably less cynical than the judge and magistrates. They might have a more realistic view of who and what can be trusted. We are perhaps getting too frightened of putting too much control into place.

My second point is that if we are going to replace common law, which is a body of wisdom that has built up, by a rule-based system, that would be difficult and dangerous. One can draw those rules so tight that suddenly a lot of evidence cannot be presented in front of a jury. I would prefer to see a system which is more widely drawn. That is why I supported the Government on the previous two amendments.

Initially, we need a system that probably allows more evidence to be presented to juries. We will filter it down, as we did with common law, into something that is sensible later. If we have a rigid, rule-based system on day one which does not allow anything to be presented to juries, they will become even more frustrated. In one case where I sat as a juror, the judge became so fed up with us passing notes and asking questions that he had to tell us to stop and try the case on the evidence presented by two adversarial lawyers who I did not think were doing a very good job; and nor did the jury.

Lord Kingsland: The debate on Clause 91 has covered almost every other clause in Part 11, except Clause 91, but your Lordships need not apologise because Clause 91, in its context, invites that kind of debate. It is important to distinguish the definition of bad character from the rules of admissibility that relate to its role in a trial. Although Clause 91 refers to the rules of admissibility, I understood the noble Baroness to be saying that it referred also to the definition.

We have discussed, so far, only the definition in Clause 90. As far as that is concerned, I am wholly in agreement with what each and every one of your Lordships has said in the debate. As far as issues of admissibility are concerned, I would prefer to wait until we discuss Clauses 92 and 93 to express an opinion.

Baroness Scotland of Asthal: I thank all those who have participated. We take very seriously the comments of the noble and learned Lords, Lord Ackner and

15 Sept 2003 : Column 730

Lord Cooke, not least because they have a wealth of experience, and I heard what the noble Lord, Lord Renton, said in support.

I shall explain why we think that the common-law rules should no longer remain. It goes to the root of the issue raised by the right reverend Prelate the Bishop of Worcester who said that the "inductive logic" does not apply in relation to human beings.

We are not seeking to set out a rigid structure which will not be amenable to jurisprudential development by the courts. We know from looking back at every other piece of statute that Parliament proposes, that, in the end, in terms of interpretation, the courts have the habit of disposing. This is not the end of the common law, but it is a removal of the common-law rules that have hitherto applied. Our intention is that a scheme should be introduced in the Bill that will provide a comprehensive statutory basis for the admission of bad-character evidence and replace the existing statutory and common-law provision in that area. We have already touched on some of the complexities which that marriage has brought about, some of them not always happy in union.

It has been widely accepted that the current law is confusing and difficult to apply and that there is a clear case for reform. At present, the law relating to the admissibility of a defendant's previous misconduct or criminal disposition is contained in a variety of common-law rules and statutory provisions, added to and adapted in a piecemeal fashion over a number of years. That haphazard and fragmentary approach has left the law as a highly complicated set of rules.

The Law Commission in its report, Evidence Of Bad Character In Criminal Proceedings, concluded that:

"The present law suffers from a number of defects . . . they constitute a haphazard mixture of statute and common-law rules which provide inconsistent and unpredictable results, in crucial respects distort the trial process, make tactical considerations paramount and inhibit the defence in presenting its true case to the factfinders whilst often exposing witnesses to gratuitous and humiliating exposure of long-forgotten misconduct".

Noble Lords will find that quote in the Law Commission's report, Law Com No. 273, at paragraph 1.7.
When Lord Justice Auld looked at the criminal courts in his review, he noted that,

"it has long been acknowledged that the law in this area is highly unsatisfactory in its complexity and uncertainty".

One needs to refer only to the relevant chapters in criminal evidence textbooks, such as Archbold or Blackstones, to see the volume of case law to which this difficult area of the law has given rise in the courts, and the convoluted rules that have been produced as a result.

The fundamental issues are still being debated and we will debate them under Clauses 92 and 93. We are not expunging the common law of England and Wales. We are removing the common-law rules, which refer to bad character, and replacing them with a statutory

15 Sept 2003 : Column 731

framework that will be applied and will in due course come to be looked at

Lord Thomas of Gresford: The Minister referred to the Law Commission and spoke about setting up a statutory structure. Will she explain why she has not followed the Law Commission in important respects? For example, the Law Commission set out proposals that evidence of bad character, whether it be of the defendant or some other person, should be admissible only if the court gives leave for it to be adduced. The Law Commission also concluded that evidence of bad character should be admitted only in such circumstances when it is in the interests of justice for it to be admitted, taking into account its prejudicial effect. In significant ways, which no doubt will be expanded upon in later debates, the Government have moved away from the Law Commission and it is rich that the noble Baroness chooses to quote the commission in support of the proposals.

Baroness Scotland of Asthal: I hear what the noble Lord said about it being rich; it is also right. We have introduced and applied many of the Law Commission's recommendations. Your Lordships will know that the drafting, for example, of Clause 93(3) is drawn from Section 78 of PACE. That drafting has already been considered and interpreted to include the tests in the common law, under which probative value and prejudicial effect are weighed against each other. We have adopted that drafting precisely because it has been interpreted in that way and so as to be clear.

To take up the point of the noble and learned Lord, Lord Cooke, the court will come to look at those issues. It will be the judge who has to determine what the probative value of any evidence will be when an application is made to that judge. Clause 93(3) is in place. The noble and learned Lord will know, as other noble Lords appreciate, that courts throughout the country are asked every day to make just such judgments as to which pieces of evidence should be admitted and which pieces should not. We do not seek to change the ordinary functioning of the judicial process, but clarity can be